*1 repeat that this I would direct offender3

disbarred. RANKIN, Petitioner,

Harry Risk, COMPANY,

FORD MOTOR Own Compensation The Workers’

Court, Respondents.

No. 85147.

Supreme Court of Oklahoma.

Sept. Jones, Jones, H. Wilson

Wilson Susan Jones, P.C., Tulsa, for Petitioner. Jr., Gotwals, Koljack, D. Gable & Richard Tulsa, Respondents.

OPINION WATT, Justice.

Claimant, Rankin, from cumula- suffered working to his hands while tive trauma Company. The respondent Ford Motor Court, Honorable West, Kimberly judge, held that the E. trial purpose for the of RanMii’s was the date determining Rankin’s injury, in of his Rankin first became aware Appeals, Divi- October ground the trial court on the sion reversed was the date causing to the conditions of his last trauma, March 1993. Ford which was my pra explanation note 1 437-439. views about fuller offenders, Wolfe, dealing repeat su- bar *2 40 certiorari,

sought April granted which we In Appeals opinions, two earlier Court of 15,1996. Casualty Bradley, Mid-Continent Co. v. 855 (Okla.App.1993), Square P.2d 145 and Utica parties disagree The over whether the date Barron, Beauty v. Salon expo- of first awareness of or the last (Okla.App.1979), the Appeals Court of con- sure to the hazard is used to determine the analogous cluded that accidental are wage because rates used to set occupational disagree, disease cases. We § disability 21 benefits under 85 O.S. have expressly reject reasoning of Mid- here, Where, significant risen over time. Square. Continent and Utica passed time has between first awareness of an exposure and last hazard was the result of an it, disability high- that caused will be benefits accidental caused a series of small er if exposure the last test is used to deter- injuries called “micro-traumas.” These small injury” mine the “time of the under 85 O.S. injuries finally inju- in resulted a discemable § 21. ry “Occupational to Rankin. disease” lim- is opinion appeal, In in its Court “only ited statute to that disease illness Appeals heavily relied on another is due to causes and conditions charac- Titus, Appeals opinion, Penny v. National trade, peculiar teristic of or particular to the Company, Union Fire Insurance 909 P.2d occupation, process or employment in which (Okla.App.1995). Penny, 150 In a two-to-one employee exposed is to such disease.” 85 opinion, Appeals majority the Court of con- 3.10; § Supp. Peabody Gallon legislature abrogated cluded that when the Workman, (Okla. Corp. the awareness doctrine for statute of limita- 1982). Section 3.10 was in amended 1977 to purposes tions in its 1985 amendment to 85 foregoing language. add the Peabody In § 43.A it abrogate O.S. intended to for all it Gallon we held that is “there no indication in purposes. amendment, Since the 1985 85 the purpose 1977 amendments that the of the § provided O.S. 43.A has part material occupational revised disease definition was to follows: abolish concepts the distinction between the ... respect With to disease or occupational inju- disease and accidental by repeated causally con- ry.” Id. at 315. employment, nected with a claim significance of the distinction between (2) years filed within two last occupational accidental disease is exposure.... trauma or hazardous 11.4, that under 85 O.S.1991 “where com- On language, Penny the basis of this pensation payable is occupational dis- majority held that the awareness doctrine ease, employer in whose could not be used to determine the “time injuriously exposed was last to the injury” under 85 O.S.1991 21. The hazards of such ... disease shall alone be Penny majority that, also held because therefore, liable without of contribution 43.A, opin amendment 85 O.S. our any prior employer.” [Emphasis add- Peabody ion Corporation Gallon v. Work requirement ordinarily This is ed.] referred man, (Okla.1982), had “lost exposure to as the “last doctrine.” symmetry.” In we held that the only applies establishing date for in a occupational cases, disease not in cumulative cumulative trauma case is the date of claim regard trauma cases with rate dis- injury. ant’s first awareness of putes. For purposes, statute limitations disagree Penny We majority’s with the the time to type file claim of this starts conclusions, inju- and hold that the “time of case, with the exposure. date of last In this ry” as that term is used 85 O.S.1991 21 however, the statute of limitations is not an is the date on which claimant first becomes issue. injury. aware of an For reasons dis- opinion, cussed the balance of this legislature Both the and this court have Penny majority opinion repudiated and its drawn a clear distinction between cumulative reasoning expressly disapproved. cases, injuries, which are accidental correct, Penny we In Flint The dissenter Parks v. occupational disease. (Okla.1988), believe, Flint Corp., “believe he said that he did not Steel Appeals’ Utica on The Court relied legislative Steel act can should extend the we argument opinion support of its Square changing the lim- Supp.1994 43.A] [43 O.S. *3 applied to a exposure doctrine that the last inju- period for cumulative trauma itations ease, had in the which resulted micro trauma upon ... the which change to also ries rejected Flint’s hearing loss. We claimant’s are calcu- temporary total benefits say- opinion, Square the argument and Utica the concluded that ma- lated.” The dissent “unpersuasive, Square was that Utica jority’s my opinion, in holding “constitutes binding this distinguishable not on —and judicial at legislation.” 909 P.2d expressly disapprove of and re- court.” We Ap- the of the Court of pudiate statements Peabody in that de- We held Galion “the Square in and Utica peals Mid-Continent ascertaining terminative date in a disabili- injuries are analo- that cumulative trauma ty establishing applicable rate for the —and the gous occupational to diseases and that in effect cumulative —... exposure applies in cumulative last ... is the date the manifested trauma cases trauma cases. The first known should condition becomes wage correctly that the claimant’s held job at related.” known as on the date rate was that which was Peabody the determines outcome Galion his claimant first became aware of cumula- legislation passed No since Pea- this case. that was “the tive trauma because the body Galion was decided indicates that § 21. injury” under 85 O.S.1991 time of the Peabody disagrees the Gal- legislature nothing in this either Court’s There court, therefore, properly ion rule. The trial support Oklahoma Statutes opinions or the first October when Rankin decided that of the Rankin’s that “time contention condition, his was the date became aware of injury” in a cumulative trauma case should setting of RanMn’s to use in the amount date when claimant first be other than the disability payments. temporary total injury. Title of an 85 O.S. becomes aware “repeated Supp.1994 43.A describes trau- GRANT- CERTIORARI PREVIOUSLY injuries separate ma” from the ED; OPINION VA- COURT OF APPEALS “asbestosis, injuries, silicosis or occupational CATED; THE WORKERS’ ORDER OF Further, radiation.” to nuclear SUSTAINED. COMPENSATION COURT Supp. expressly defines “oc- O.S. 1994 3.10 injury” specific type cupational V.C.J., HODGES, KAUGER, peculiar to the claimant’s hazards LAVENDER, SIMMS, repeatedly We have held that

occupation. HARGRAVE and disease, occupational and cumulative SUMMERS, JJ., concur.

injuries, separate raise issues. See Galion, Corpora WILSON, Parks v. Flint Steel J., OPALA, ALMA with whom

tion, (Okla.1988),both of which C.J., joins, dissenting from the court’s expo proposition last stand today’s disposition. concurring in opinion but occupational applicable rule disease sure that when Today’s pronouncement holds cases, apply does not to cumulative § 211 calculating worker’s 85 injuries. earning times al consist three hundred 21 are: shall terms of 85 O.S.1991 act, average daily wage salary which an “Except provided as otherwise weekly wages injured employee average working substan- the same class as the of the shall be taken immediately preceding tially the of such whole compute compensation basis year or in a similar be determined as follows: and shall (2) place neighboring shall have the same or injured employee shall not have If the days employment during the earned such employment during substan- worked in such employed.” [Emphasis mine.] when so average tially year, annu- of such his thé whole syndrome).7 rate alleged for benefits due for cumulative- tunnel Claimant his in- (caused by repeated jury day effect accidental occurred March 1993—his trauma),2 always micro job undergoing surgery. corrective before coincides with claimant having the time Ford was successful in trial tribu- apply first aware nal becomes manifested October harm relationship of its causal award. his employment. IWhile concur insofar as the (by January 30, The trial tribunal court holds that Rankin’s claim cumu- order) (a) found that Rankin sustained a injury3 timely lative-effect accidental compensable injury his hands from re- filed it because was peated episodes job micro traumatic harm-causing of the last event and *4 (b) and established the rate for Ran- Munsingwear, v. Inc. Tullís awareness doc- temporary perma- kin’s total 4 (as by Coy trine refined v. Dover partial disability by nent reference to the Div.5) (a) Corp./Norris correctly was invoked he date became aware his first of (b) to establish his date to find of (October 1986). rate, applicable wage I cannot accede unqualified sought breadth accorded the Tullís Rankin corrective relief. After a by today’s pronouncement. Rankin, of Appeals’ decision for Ford certiorari,

sought granted which we to review first-impression issue tendered. I II THE ANATOMY OF LITIGATION [claimant], Rankin an of Ford THE 1985 AMENDMENT OF 85 O.S.1981 Company, glass Motor plant, Tulsa or [Ford DID NOT THE RELEGATE 1964, employer] since filed Form 36 to claim TULLIS AWARENESS DOCTRINE compensation on-the-job for an accidental in- TO A COMPLETELY INEFFEC- jury by caused cumulative (carpal TIVE STATUS 2. For a filing prescribed discussion the difference 7. by between The time for Form 3 is single-event injury, cumulative-effect and see 43(A). Mc- provide: Its terms Time-DC, Inc., Okl., 1252, Donald v. 773 P.2d compensation "The to claim under the (1989). Act shall be forever recognized unless, 3. court first 1957 that "ac an years barred within two after the injury" may progressively cidental be effected death, date of accidental a claim for lengthy period over a time from the cumulative compensation is filed with the Workers’ Com- episodes. numerous micro traumatic however, pensation Court. Provided a claim Edwards, Macklanburg-Duncan Company See v. may (2) years be filed within two of the last (1957). payment any compensation or remuneration paid compensation in lieu of or medical treat- (1976). 4. In Tullís the court by employer ment which was authorized held that a cumulative-effect accidental the insurance carrier. Provided howev- occurs when a worker becomes aware further er, respect by with repeated to ... repetitive on-the-job "ill effect" of trauma and causally employment, causally understands the be connected with effect to connected employment. claim Id. 903. The be Tullís aware filed by Coy ness doctrine was Dover exposure...." date last trauma or hazardous refined Div., Okl., Corp./Norris [Emphasis mine.] (rea superimposed objective There the court man's) prongs sonable standard both reported 8. Rankin admitted he had Ford in Tullis test. Id. at 747. October 1986 that he had numbness in his hands using perform them work at levels above Dover, supra 5. note at Hrg. pg. his head. Tr.— Employee's 6. Form the First Notice of Acci- Injury dental Compensation, and Claim for discussion the Tullís doc- awareness trine, process. serves to initiate the claim note 43(A)10 For cumulative-effect compensation award. amended Because (which significant usually co ante- awareness doctrine the Tullís impair with the of a functional passage, announced incides onset the amendment’s dates 1976) trauma, (or disability) repeated to test its must be revisited ment it was (of legisla- in harm which with the after-enacted which manifest themselves compatibility change. or should become the worker becomes tive

aware).15 provisions of Under the 1985 A before, 43(A),16 as well harm, brought, for which claim be 43(A), §OF THE 1985 AMENDMENT BY (or occurs when a worker becomes aware ACCIDENTAL INJU- CLAIMS FOR aware) be of a manifested should RY BY A SERIES OF MICRO TRAU- If the cumulative trauma. claim BARRED IF ARE MATIC EPISODES job remains on the a worker who WITHIN TWO NOT BROUGHT experience traumatic continues to HARM- THE LAST YEARS OF episodes, rate of to be used EVENT DEALING ON-THE-JOB which the award must be that 43(A), post-1985 language repeated applied at the time the harm-deal *5 concept par- law introduced into the a awareness-inducing ing culminated in events repose and no- takes of both limitations point is pathology. temporal This critical to (for tions,11 compensable cumula- bars claims by using the Tullís be ascertained awareness injuries) brought not within two tive-effect by as refined Dover.17 test subject- date the worker was last years the of on-the-job aggravation of an earli- Because job. It harm-dealing ed to forces injury, er-compensated cumulative-effect repeated-trau- on imposes a limitation12 (or dis- impairment produces increased repose14 vis-a- ma claims13 as well per- ability), is as another accidental treated injuries that do those cumulative vis injury meaning the sonal with- culminate in a worker’s awareness not Compensation Act [85 O.S.1991 on- the last micro traumatic in two of worker, §§' who remains the seq.],18 1 et the-job event. sub- employment continues to be on jected repeated micro traumatic harm to B for job, may bring successive claims 43(A)’s IMPACT 1985 THE VARIED OF (or disability) from impairment increased THE TEMPORAL AMENDMENT ON post-injury- aggravation the earlier-com- POINT FOR A CUMULATIVE-EF- injury for pensated The condition. date of FECT INJURY’S OCCURRENCE (based aggra- post-injury new each claim vation) to is reference is establish established injury critical to date of (or should have aware for worker became injured ing the worker’s they destroyed claims can be repose arise. pertinent of 85 O.S.1991 For terms 10. before Elec., 43(A), 7. 11 at 468. note note supra Westinghouse supra see between a For a discussion of the distinction 11. 903; Tullis, note 4 at supra Galion 15. repose, see Smith statute of limitation one 312, Workman, Okl., 315 — 316 Corp. v. Okl., P.2d 732 Westinghouse Corp., v. Elec. Edwards, (1982); at 255. note 3 supra (1987). n. 11 place to a limit on Statutes of limitation serve 12. of 85 O.S.1991 terms 16. For After the bring plaintiff’s to an action. time 43(A), see note supra lapsed, prescribed period a statute of has for the redress extinguishes remedy limitation components of Tullis awareness Westinghouse cause action. accrued doctrine, note Elec., supra at 468. note 11 Ware, note at 748. supra, 13. See Dover Baking 18. ITT Continental Co. (1980); City v. Oklahoma extinguish Repose even be- serves to Schoonover, short, by In force accrued. claim have fore aware) post-injury pa- pose, been of the enhanced period’s whether —before that expira- thology relationship employ- and its causal to tion —the did or did not manifest itself (or ment. awareness-inducing impairment dis- ability). process for a described worker’s re- covery post-injury of benefits due for on-the- though Even the 1985 amendment of job aggravation to distinguished is be modify did the Tullís awareness post-award changes “condi- test, totally it did not concep- eliminate the give tions” that rise to a 85 O.S.1991 2819 underpinnings tual for an accidental reopening process, claim. The latter which by repeated trauma. While the Tullís doc- place takes intervention new trau- longer —sans trine no trigger can the limitation ;from later-occurring changes pathol- ma— period, it remains viable as an aid in estab- ogy, must be shown attributable to a (and lishing hence the progression compensable inju- the earlier rate) those workers who remain for ry impairment result increased subject to harm-dealing continued forces (or disability).20 aWhen worker’s initial their work environment. For all other repeated-trauma claim for a is, claimants the date of force of he has left and is amendment, after postponed to the date on-the-job longer subjected no harm-deal- harm-dealing their last encounter with (for forces, on-the-job forces. due) compensation rate that is must be Because I cannot countenance the court’s short, the “date of last trauma.”21 In only declaration that the Tullís awareness test workers who longer bring no addi- must be continued dictate work- force tional claims post-injury their accidental er’s repeated-trau- all rate for on-the-job aggravation [and must hence *6 claims, I entirely today’s ma recede stand reopening confined law to re- pronouncement, acceding only to the court’s upon lief for additional progres- benefits due disposition. sive deterioration of their condi- tion] (by moved forward amendment) point force to the

time experienced when the

harm-dealing on-the-job event. In the

Ill Matter of the REINSTATEMENT OF F. Kenneth BROWN to Active Mem- SUMMARY bership in the Oklahoma Bar Associa- The 1985 amendment of moved the Attorneys. tion and to the Roll of point limitation’s of beginning from the ear- SCBD No. 4102. temporal lier marker —the date when com- pensable Supreme repeated harm from Court of Oklahoma. culmi- nated in “awareness” —to when the worker Sept. subjected was last to a micro traumatic on- the-job event. All claims for a cumulative- injury brought the last after event are barred re- law’s harmful pertinent Co.,

19.The terms of 85 O.S.1991 28 are: Benning Publishing v. Pennwell "Upon (1994); application own motion or Oklahoma Gas & Elec any party Court, in interest ground tric Co. State Industrial condition, change any the Court award, and, review, any review on such ending, diminishing make an award or increas- 21. See terms of 85 O.S.1991 awarded, compensation previously sub- 43(A), note 7. ject provided to the maximum and minimum Act_" in the Workers' [Em- phasis added.]